IN THE CASE OF:	  

		BOARD DATE:	  22 September 2011

		DOCKET NUMBER:  AR20110005058 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests:

* reconsideration of ABCMR denial to remove his non-judicial punishment (NJP) of 4 September 1991and restore his rank and privileges 
* removal of his local bar to reenlistment and his request to be discharged be rescinded
* change his separation program designator (SPD) and reentry eligibility (RE) code to reflect other than local bar to reenlistment
* add the Army Achievement Medal with one Oak Leaf Cluster to his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* add completion of the Army Urban Biological and Chemical Warfare Training to his DD Form 214

2.  The applicant states his NJP was unjust/unauthorized and illegal.  He states he received an Army Achievement Medal with Oak Leaf Cluster for his participation in, and during the "REFORGER" Operations of 1988.  He states he attended and completed the Army Urban Biological and Chemical Warfare Training in 1987 or 1988.

3.  The applicant provides a copy of his DD Form 214.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  ABCMR Docket Number AC97-11430, dated 7 August 1998, denied his request for the removal of the record of NJP he accepted on 4 September 1991 and restoration of his rank and privileges.  Army Regulation 15-185 sets forth procedures for processing requests for correction of military records.  This regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within one year of the ABCMR's original decision and it has not previously been reconsidered.  The staff of the ABCMR reviewed his request for reconsideration and determined that it was not received within one year of the ABCMR's original decision.  As a result, the request for reconsideration does not meet the criteria outlined above and removal of the NJP and restoration of his rank and privileges will not be discussed further in these Proceedings.

3.  He enlisted in the Regular Army on 4 February 1986 for a period of 3 years.  He reenlisted on 7 June 1988 and on 10 October 1989.  

4.  He was promoted to sergeant/pay grade E-5 on 1 May 1989.  Headquarters, 1st Cavalry Division Artillery, Fort Hood, TX Permanent Orders 36-16, dated 
15 September 1989, awarded him the Army Achievement Medal.  

5.  Item 9 (Awards, Decorations & Campaigns) of his DA Form 2-1 (Personnel Qualification Record) does not show he was awarded the Army Achievement Medal.  There are no orders in his Military Personnel Records Jacket (MPRJ) awarding him a second Army Achievement Medal.

6.  Item 17 (Civilian Education and Military Schools) of his DA Form 2-1 does not show he attended the Army Urban Biological and Chemical Warfare Training.  There are no orders or academic evaluation reports in his MPRJ showing he attended this course.

7.  On 4 September 1991, he accepted nonjudicial punishment (NJP) for: 

* unlawfully striking a child (his son) under the age of 16 years with a belt on or about 24 March 1991
* unlawfully striking a child (his daughter) under the age of 16 years with a belt on or about 24 March 1991

8.  On 29 October 1991, he received a letter of reprimand from his first sergeant 
for using extraordinary poor judgment when he started a domestic disturbance and failed to follow the instructions of his first sergeant by returning to his house without an escort, after being told not to.

9.  On 13 November 1991, he received a letter of reprimand from his unit commander for failing to be at his appointed place of duty at the appointed time after being notified in advance that an exercise would be conducted on 
7 November 1991.  He failed to report to the mandatory exercise and he missed movement to his temporary duty location on the same day.

10.  On 11 December 1991, the applicant's commander initiated a local Bar to Reenlistment Certificate, recommending that the applicant be barred from reenlistment based on:

* his accepting NJP on 4 September 1991
* a letter from Devon Capital corporation Collection Division
* memorandum, dated 27 November 1990 for non-return if items issued from ACS Loan Office
* memorandum dated 11 April 1991 for domestic disturbance
* memorandum dated 29 October 1991 for disobeying a lawful order

11.  A DA Form 4126-R (Bar to Reenlistment Certificate), dated 
11 December 1991, documents that the applicant was furnished a copy of the recommendation.  The form further shows:

* he acknowledged that he received a copy of his commander's recommendation to bar him from further reenlistment
* he was counseled and advised of the basis for the action
* he indicated he did not desire to submit a statement in his own behalf
* the bar to reenlistment was approved on 10 January 1992

12.  On 27 February 1992, he accepted NJP for:

* willfully breaking the leg and damaging  the frame of a table of a value of about $289, military property, causing $100 worth of damage  
* willfully kicking  a large dent into a dryer of a value of $213, military property, causing $150 worth of damage
13.  On 30 March1992, he submitted a request to be discharged under the provisions of chapter 16 of Army Regulation 635-200 (Separations).  He stated he was unable to overcome the reasons for his bar to reenlistment.

14.  On 1 April 1992, his request was approved and he was discharged on 1 May 1992.  He had completed 6 years, 2 months, and 28 days of service that was characterized as honorable.  He was issued a DD Form 214 for his period of service.

	a.  Item 13 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) does not show he was awarded the Army Achievement Medal.

	b.  Item 14 (Military Education) does not indicate he completed the Army Urban Biological and Chemical Warfare Training

	c.  Item 26 (Separation Code) contains the SPD KGF.  The SPD KGF is defined in Army Regulation 635-5 (Separation Documents) as "locally imposed bar to reenlistment."

	d.  Item 27 (Reentry Code) contains the RE code 3.  Army Regulation 
601-210 (Regular Army and Army Reserve Enlistment Program) states RE-3 applies to individuals who are not considered fully qualified for reentry or continuous at the time of separation, but disqualification is waivable.  

15.  Army Regulation 601-280 (Total Army Retention Program), in effect at the time, governed bars to reenlistment.  This regulation provided that a Soldier could be barred from reenlisting based on specific incidents of substandard performance and that any commander in the Soldier’s chain of command may initiate a bar to reenlistment.  

16.  The SPD/RE Code Cross-Reference Table, dated 2 October 1989, shows that the appropriate RE code for the SPD KGF is RE-3 or RE-4.  Based on the criteria set forth in the steps contained in this table an RE-3 is appropriate in the applicant's case.

17.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Paragraph 16-5b provides that Soldiers who perceive that they will be unable to overcome a locally imposed bar to reenlistment may apply for immediate discharge.


DISCUSSION AND CONCLUSIONS:

1.  His commander initiated a bar to reenlistment based on specific incidents of substandard performance.  He was counseled and furnished a copy of the recommendation.  He acknowledged he was counseled and advised of the basis for the bar to reenlistment.  He did not submit any statements in his own behalf.  
There is no indication of procedural or other errors that would tend to jeopardize his rights.  Therefore, there is no basis to remove the bar for reenlistment.

2.  Subsequent to receiving his bar to reenlist he accepted NJP again for two specifications of willfully damaging military property.  He then requested to be discharged because he was unable to overcome the reasons for his bar to reenlist.  Evidence shows that the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

3.  In view of the above, the SPD and RE codes on his DD Form 214 are correct.

4.  His MPRJ contains no record of his attending the Army Urban Biological and Chemical Warfare Training.  Therefore, this information cannot be entered on his DD Form 214.

5.  His MPRJ contains orders awarding him to the Army Achievement Medal.  However, there is no evidence he was awarded a second Army Achievement Medal.  Therefore, only one Army Achievement Medal can included on his 
DD Form 214.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected and amend item 13 to include the Army Achievement Medal.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to:

* removal of his bar to reenlist
* changing his SPD and RE codes
* awarding a second Army Achievement Medal
* adding the Army Urban Biological and Chemical Warfare Training to his DD Form 214 




      _______ _   _X______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20110005058



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ABCMR Record of Proceedings (cont)                                         AR20110005058



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